Essential considerations in a court’s review of an administrative decision after an administrative hearing required by law

Essential considerations in a court’s review of an administrative decision after an administrative hearing required by law
Willis v New York State Liq. Auth., 2014 NY Slip Op 04776, Appellate Division, Second Department

In this CPLR Article 78 action challenging a determination of the New York State Liquor Authority adopting the recommendation of an administrative law judge the Appellate Division succinctly sets out the essential elements in a court’s review of a challenge to the determination as follows:

1. "Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence;

2. “Substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact;

3. Substantial evidence is "[m]ore than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt;

4. "The standard demands only that a given inference is reasonable and plausible, not necessarily the most probable;

5. “The strict rules of evidence do not apply to administrative proceedings and hearsay evidence is admissible; and.

6. “Hearsay evidence may constitute substantial evidence if sufficiently relevant and probative and may, under appropriate circumstances, form the sole basis for an agency's determination, unless it is seriously controverted.”

In sustaining the challenged determination of the State Liquor Authority, the court explained that the Authority’s determination, sustaining three charges was supported by substantial evidence and that testimony at the hearing, consisting of conclusory denials, did not seriously controvert the Authority's showing of substantial evidence in support of the charges.

As to the penalty imposed by the Authority, the Appellate Division said that it was “not so disproportionate to the offenses as to be shocking to one's sense of fairness,” citing S&S Pub, Inc. v NYS Liquor Authority, 109 AD3d 460, and that “[i]n setting a penalty, consideration of the history and previous record … is appropriate,” citing Untitled LLC v NYS Liq. Auth., 82 AD3d 460 among other decisions.

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Audits of municipalities issued by the New York State Comptroller Thomas P. DiNapoli during the week ending July 5, 20114

Audits of municipalities issued by the New York State Comptroller Thomas P. DiNapoli during the week ending July 5, 20114

Source: Office of the State Comptroller

Town of Colonie – Justice Court Operations (Albany County)

Auditors commended the town justices for establishing strong internal controls over court operations. The justices implemented specific controls to ensure court money collected was properly recorded in the court records, deposited in a timely manner and accurately reported to the Justice Court Fund.

Village of Frankfort – User Charges (Herkimer County)

Village officials need to improve internal controls to ensure water, sewer and electric user charges are properly billed, collected, recorded and deposited. The duties for billing, collecting and recording payments are not segregated. Also, customer account adjustments are not independently approved and the computerized billing system does not provide an audit log to show adjustments that have been made.

Gloversville Public Library – Claims Processing (Fulton County)

Internal controls over the claims audit process were not appropriately designed to protect and account for library assets. Although one board member reviewed claims as a part of the check-signing process, they were not reviewed by other members. Additionally, the board member who reviewed the claims did not document his review and approval by signing the claims.

Town of Great Valley – Town Clerk (Cattaraugus County)

The town clerk remitted tax collections to the town and the county up to two months late and returned duplicate payments eight months after the payment was made. The clerk did not routinely indicate the form or date of payment on tax stubs/receipts and made deposits on average nine days late. In addition, the town board has not performed an annual audit of the clerk’s records.

Town of Le Roy – Purchasing (Genesee County)

The board reviewed each claim presented for audit and approval, however, they did not ensure that claims included the necessary documentation. Paid claims lacked proper itemization and documentation to indicate they represented actual and necessary town expenses.

Village of Monticello – Budget Review (Sullivan County)

Auditors found that most of the significant revenue and expenditure projections in the tentative budget for the general, sanitation, water and sewer funds are reasonable. The tentative budget did not include a tax overlay or provisions for potential salary increases from contract settlements. These issues could cause the village to become fiscally stressed or require an increase in taxes.

Newstead Fire Company – Internal Controls Over Financial Activities (Erie County)
The treasurer maintained appropriate financial records, performed monthly bank reconciliations, and submitted monthly financial reports to the board. However, the board did not oversee fundraising activities, properly authorize disbursements or review the treasurer’s reconciled bank statements.

City of Peekskill – Financial Condition (Westchester County)

Reliance on appropriated fund balance as a financing source in the 2011 and 2012 fiscal years resulted in a significant reduction in the city’s general fund balance and unassigned fund balance. Beginning in the 2013 fiscal year, city officials took steps to replace fund balance. Based on the city’s revenue increases and cost-saving measures adopted in 2013, it appears that officials are properly managing the city’s financial condition.

Town of Warrensburg – Procurement (Warren County)

The town’s procurement process was generally effective for obtaining goods and public works contracts subject to the policy’s bidding thresholds. In most instances the town purchased equipment and commodities through state or county contracts or by competitively bidding. However, officials did not develop and follow formal procedures for obtaining professional services.
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New York State Comptroller Thomas P. DiNapoli issues audits of certain State agencies

New York State Comptroller Thomas P. DiNapoli issues audits of certain State agencies

Source: Office of the State Comptroller 

On July 2, 2014 New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued:

Dormitory Authority of the State of New York, Mission Statement and Performance Measures (2013-S-13)

Auditors found the authority did not meet its targeted performance level for customer satisfaction for 20 percent of its customers, particularly in the areas of project design and construction. Also, construction clients expressed concerns about the timeliness and cost of projects. With respect to debt issuances, 43 percent of survey respondents indicated they were less than satisfied with the cost of debt issuance, and 12 percent rated timeliness less than acceptable.

Metropolitan Transportation Authority, New York City Transit Authority - Procurement and Payroll-Related Matters Pertaining to the Use of Certain Federal Funds (2012-S-105)

New York City Transit Authority (Transit) used the American Recovery and Reinvestment Act (Recovery Act) funds for 23 projects estimated to cost $441.4 million. Auditors visited 15 of the 23 projects' sites and did a more detailed review of one project, the Induction Loop project (estimated to cost $13.4 million), finding the prime contractor allowed unauthorized subcontractors to work on the project. One of those subcontractors was Petrocelli Electrical Company, whose former chairman and owner was indicted (and later convicted) on charges of making illegal payments to a labor union representative. Auditors also found two Transit supervisors were paid excessive and questionable overtime totaling $31,783 for administrative duties. In visits to work sites, auditors noted an excessive number of Transit employees present and receiving overtime pay.

New York State Homes and Community Renewal, Selected Employee Travel Expenses (2012-S-99)
Travel expenses totaling $112,233 for three of the five employees selected for review were appropriate and adhered to state travel rules and regulations. However, auditors identified unnecessary and questionable travel expenses totaling $12,446 for two employees. The travel reimbursements for these two employees may have potential tax implications.

New York State Thruway Authority, Inspecting Highway Bridges and Repairing Defects (2014-F-9) (Follow-Up)

In an initial audit report issued in April 2013, auditors found the New York State Thruway Authority (NYSTA) found that NYSTA repairs defects identified during inspections. However, highway bridges were not always inspected timely, including three with flagged conditions, and DOT was not always notified of red flags within one week, as required.  In a follow-up report, auditors found NYSTA implemented the three recommendations made in our initial report.

Workers' Compensation Board, Controls Over Cash Advance Accounts (2014-S-12)

The Workers’ Compensation Board (WCB) designed effective internal controls over certain accounts to ensure that payments were for appropriate business purposes and were properly accounted for. Auditors found the controls have generally operated as intended. However, auditors noted a few isolated issues related to certain checks that were not properly accounted for or documented in WCB records